FCC Wireless Bureau rejected challenge to revisions it made in lo...

petitioned FCC for reconsideration of decision to let previously qualified bidders select licenses to pursue other than ones originally identified in their applications. To select additional licenses, bidders must have provided information to FCC by July 26, with supplemental upfront payments due in same time frame. Legislation Congress passed in June indefinitely postponed most of 700 MHz auctions set for June 19, with exception of moving smaller C- and D-block bidding in lower band to date between Aug. 19 and Sept. 19. Law stipulated that only bidders that could participate in remaining auction were those that qualified to take part in original lower 700 MHz band auction. Bureau allowed qualified bidders to leave auction altogether and receive return of down payments and those that remained to select additional licenses and supplement upfront payments. Spectrum Holdings contended that part of notice that allowed selection of additional licenses and augmenting of payments violated Sec. 309(j) of Communications Act, which mandates that Commission allow adequate period before bidding rules are issued to permit notice and comment on proposals. In order released late Thurs., bureau said it previously sought comment on process of having qualified bidders set initial maximum eligibility by selecting licenses and making upfront payments. That procedure wasn’t changed in revised public notice, it said. “Rather the bureau merely modified the deadlines by allowing qualified bidders to select additional licenses and make supplemental upfront payments within a specific time period.” Bureau said: “These modifications do not amount to the issuance of new bidding rules within the meaning” of Sec. 309(j). It said its use of notice and comment period when creating mechanism for initial bidding eligibility didn’t require further notice and comment “before the bureau modifies deadlines for selecting licenses or submitting upfront payments, when other relevant concerns make such modifications appropriate.” Law itself that postponed most of 700 MHz auctions, except for licenses up for bid next month, doesn’t “limit the pre-existing discretion” that FCC has under Sec. 309(j) to modify dates for selecting licenses and making payments without comment, it said. “Recognizing that the bureau needs flexibility and discretion in this area in order to respond to changed circumstances and conduct an orderly auctions process, the Commission has granted the bureau broad authority to administer competitive bidding procedures,” order said. It reiterated bureau position that procedural changes were needed because bidders qualified to take part in original 700 MHz lower band auction couldn’t have anticipated changes in subsequently passed legislation when they made initial upfront payments. “The removal of 3 of 5 originally available license blocks significantly changed the availability of lower 700 MHz band spectrum licenses for the near future,” bureau said. “In light of the extraordinary changes in Auction No. 44 required by the Auction Reform Act, permitting qualified bidders to select additional licenses and supplement upfront payments may be the only way to permit a party that currently most highly values a particular license to bid on and win it in the auction, thereby promoting statutory objectives.” Thomas Jones, who heads Spectrum Holdings, said company still disagreed with FCC’s interpretation of law, but said company hadn’t made decision on whether to pursue legal action.